A bill of costs is not properly certified if the signatory’s name is not identifiable, a High Court judge has ruled.
Mrs Justice Steyn also ruled that a paper bill and an electronic one were defective in not giving the name and status of each fee-earner, and not identifying the work they had done.
As a result, the claimant will have to re-serve a compliant bill.
Barking, Havering and Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 (QB) was a clinical negligence case where the defendant sought to strike out the bill of costs (rather than the claim for costs) for non-compliance. This was rejected by Master Nagalingam.
Steyn J sat with Master Brown as assessor on the appeal. “Although this is my judgment, we are in agreement,” she said.
The bill comprised a paper bill for work undertaken until 6 April 2018 and an electronic bill covering costs thereafter.
The signature on the certificate was illegible and had the words “Partner in the firm of Irwin Mitchell LLP” underneath. The firm chose not to disclose whose signature it was.
Master Nagalingam decided that he ought to accept the bill had been certified by a solicitor, given the absence of any requirement in rules or Precedent F that the person certifying be named.
Steyn J acknowledged that there was no express requirement but found that, “as a matter of ordinary interpretation, bearing in mind the purpose of certification, it is implicit that the solicitor who signs the certificates must be readily identifiable on the face of those certificates”.
It was, she continued, “unsatisfactory” if the nature of the certification gave rise to any doubt as to who signed a bill, which could be relevant in the event of a bill being mis-certified.
This was not an “onerous” requirement, the judge added, and she confessed to “some astonishment” that Irwin Mitchell had not provided the name since being asked for it in November 2019.
Steyn J noted too that a person identified as a partner was no longer automatically a solicitor. “Neither of the witness statements adduced by the respondent states that the signatory is a solicitor and there is no other evidence to that effect. Indeed, the court has not even been informed on instructions that the bill of costs was certified by a solicitor.
“Rather, the court has been asked to presume that it must have been a solicitor because that is what the rules require.
“The presumption referred to in Bailey v IBC Vehicles Ltd is a presumption that the statements certified by an officer of the court can be trusted. It does not apply at the stage of considering whether a bill of costs has, in fact, been properly certified by a solicitor.”
On the bills, Master Nagalingam concluded that neither was non-compliant by reason of the omission of names and grades of fee-earners.
He said: “It is a matter for the receiving party as to how much detail they wish to provide in a ‘statement of status’ but it strikes me that, where that statement leaves any doubt, then the receiving party can have no complaints in an experienced or qualified fee-earner being awarded a rate lower than they might otherwise be entitled to.”
In respect of the paper bill, Steyn J said paragraph 5.11(2) of PD 47 did not expressly require fee-earners’ names, SCCO grade or years of post-qualification experience to be set out. However, she held that it was implied.
“It is clear on the face of paragraph 5.11(2) that the hourly rate and ‘status’ of ‘each’ fee-earner must be provided in the bill of costs.
“While paragraph 5.7 states that a bill of costs ‘may consist’ of the sections specified, including a ‘background information’ section, as appropriate, and paragraph 5.11 uses the word ‘should’ rather than ‘must’, in my judgment, in any case where costs are claimed in respect of a legal representative’s employee(s), the effect of paragraph 5.11 is to require each employee’s status and hourly rate be included in the bill of costs.”
A bill claiming for work done by reference only to categories of fee-earners was “intolerably opaque” and made it “impossible” to spot anomalies, such as work being duplicated.
Though Precedent A did not allow for the names of fee-earners and referred to ‘Other fee-earners’, this was “insufficient to compel an interpretation which is inconsistent with what I consider to be the proper interpretation of paragraph 5.11(2)”.
The judge agreed that the respondent was not required to specify the SCCO grade of each fee-earner in the paper bill but that, in its absence, doubt would be resolved in the paying party’s favour.
“However… I consider that respondent’s paper bill did not comply with the requirements to specify, in respect of each individual named employee, their hourly rate(s) and status, including, for any fee-earner with a professional qualification (such as a solicitor or Fellow of the Chartered Institute of Legal Executives), the number of years of post-qualification experience.”
Steyn J said that though this decision had been “very finely balanced”, it was with “much less hesitation” that she found the electronic bill wanting.
Paragraph 5.A2 of PD 47 says that, whichever spreadsheet format is used, the electronic bill must allow the user to identify ‘the detail’ of all the work undertaken in each phase in chronological order and must contain all calculations and reference formulae in a transparent manner so as to make its full functionality available to the court and all other parties.
The bill failed to do this, Steyn J said. The names (or initials) of fee-earners were part of the ‘detail’ and, without it, “the bill is opaque”. She went on: “Filling the column which seeks the name of each legal team member with a code indicating a status category has the same effect as if the respondent had left the column blank.
“It is impossible to filter the work undertaken by reference to individual fee-earners. This lack of transparency may hide claims where more than one fee-earner at the same level has duplicated the work of another.”
The bill also did not include the grade for any fee-earner even though Precedent S had columns for both status and grade, “reflecting the fact that these descriptions seek different information”.
The judge said: “While I have found that it is not a breach of paragraph 5.11(2) not to provide the SCCO grades in the paper bill, electronic bills are required to be more informative and more transparent than was required for paper bills to be compliant.”
Robert Marven QC (instructed by Keoghs) for the appellant. Simon Browne QC (instructed by Irwin Mitchell) for the respondent.